My Workplace

e-print e-mail

Enterprise Bargaining in NSW: Step 8

Step 8 - The Commission Hearing

General Information

Once the agreement is lodged at the Industrial Registry, there is a commitment in the Act that the Commission will deal with applications for approval within 28 days, unless there are special circumstances.

If the agreement is with individual employees, the Industrial Registrar prepares a comparison report, comparing the conditions of employment under the agreement and those under relevant awards, or if there are no such awards, under the relevant employment conditions.

The agreement will then be sent to the Commission for hearing.

Notification of hearing dates

The parties to the enterprise agreement will be notified by telephone of the presiding Judge or Commissioner, time and date of the hearing before the Commission and the court room in which the matter will be heard.

All parties will be expected to appear in Court on the day notified.

top

Procedure before the Commission -

Forms of address - When appearing before a Presidential Member of the NSW Industrial Relations Commission the proper form of address is "Your Honour" or "Justice X". If appearing before a non-judicial Presidential Member of the Commission the form of address is "Deputy President X".

When appearing before a commissioner, the form of address used is "Commissioner X".

When in doubt about the correct form of address use the neutral phrase "the Commission".

The taking of appearances

At the time set down for the hearing to begin, the Judge or Commissioner will enter, and all present in the courtroom will stand up. The Judge or Commissioner will acknowledge everyone's presence with a slight bow and all present should bow in response. After the Judge or Commissioner is seated, everyone sits.

The Clerk/Associate then announces the matter before the Commission and calls for appearances.

Each party to the hearing announces his/her appearance by stating the following information:

1. Whom he/she represents
2. His her status before the Commission eg. applicant , respondent, or intervener
3. The name of any one else appearing with him/her
4. His/her own name.

For example, "If it please the Commission, I appear for the applicant, the XXX Union of New South Wales. My name is Mary Smith".

After all appearances have been announced, the applicant will be called upon to begin his/her submission.

top

Applicant's Opening Address & Evidence

The applicant or the applicant's representative will generally be invited to present his/ her case first.

In the case of enterprise agreements the applicant should address the following issues:

• the parties to the agreement;
• the involvement of the parties and/or their representatives in the negotiation process;
• that the parties understand the effect of the agreement;
• that the parties did not enter into the agreement under duress;
• the award/s or enterprise agreements (if any) the agreement will replace if approved;
• how the agreement complies with relevant statutory requirements, including the Anti-Discrimination Act 1977,
• the major points of comparison between the agreement and the relevant award/s to demonstrate that the agreement does not, on balance, provide a net detriment to employees covered by the agreement;
• how the agreement complies with the Principles for approving the enterprise agreement set by the Commission;
• or if the agreement does not meet the requirements of the Principles, how the departure from those principles does not prejudice the interest of any of the parties to the agreement;
• if the agreement does not cover all employees of the employer, the basis on which it is contended that the Commission may approve the agreement; and,
• the conduct of any secret ballot held.

All of this information can be gathered from the application and affidavit forms filed at the time of lodging the agreement.

top

Witnesses

It is advisable to have one or more representatives of each of the parties in case the Commission wishes to ask questions about the above issues. For example, the Personnel Manager representing the employer or an employee representing the employee party.

Respondents Opening Address

The respondent or other party to the enterprise agreement will then be given a chance to give an opening address. Generally, in the case of an enterprise agreement, this should just be in the form of a supporting statement to the applicant's opening address.

Intervener's Opening Address

Any one with an interest in the enterprise agreement, for example a trade union, in the case of an agreement with the individual employee or the President of the Anti-Discrimination Board, may ask to be heard by the Commission.

The Commission will usually hear the intervener but this does not mean that the intervener has a right of veto over the agreement.

top

Approval of the Agreement

The Commission must be satisfied that the agreement complies with the Act and the Principles. The Commission may also take into account:

1. the wishes of the parties;
2. the award coverage of employees not covered by the proposed agreement;
3. the history of industrial regulation at the enterprise or workplace; and
4. other matters the Commission considers relevant.

No net detriment

The Commission will consider applications for approval of enterprise agreements on their own merits to ensure, on balance, the agreement does not provide a "net detriment" to the employees as a group who are covered by the agreement. This will be determined by comparing the enterprise agreement with aggregate package of conditions of employment in the relevant award/s.

In determining the "no net detriment" test, the Commission will take into account:

1. the benefits and conditions applying under the proposed enterprise agreement in comparison to those applying under the relevant award/s;
2. the conditions in the proposed enterprise agreement being considered as an aggregate package;
3. provisions in the Occupational Health and Safety Act 2000 and regulation directly relevant to the change in work patterns to be performed under the agreement;
4. the needs and circumstances of the enterprise;
5. the wishes of the parties to the agreement;
6. any other matters the Commission considers relevant.

   The Commission will also take into consideration:
   

7. test case decision of the NSW Industrial Relations Commission;
8. State decisions settling principles of provisions pursuant to section 51 of the Act;
9. minimum sick leave provisions for awards as prescribed under section 26 of the Act

Once approved, the enterprise agreement will have the same legal force as an award.